S.S. Sandhawalia, C.J.
1. These seven appeals--one preferred by the claimants and the rest by the oriental Fire and General Insurance Company Ltd., and the owner of the insured vehicle (with cross-objection in two)--raise identical question of law and fact. Learned counsel for the parties are agreed that this judgment will govern all of them.
2. All these appeals arise from an unfortunate automobile accident which took place on the 31st of July, 1968, within the town of Amritsar. On that day at about 10.30 P. M. Sehdev Seth appellant was driving Fiat Car No. PNJ 200 from Railway Station, Amritsar, towards Putlighar on the main Grand Trunk Road. As the driver approached a traffic island locate at the junction of the G.T. road with the road going over the over-bridge. (called the Rego Bridge, which passes over the railway lines) he dipped his head-lights. From the opposite side a scooter driven by Harbans Singh deceased with his wife Smt. Manjit Kaur (now the claimant along with her children) seated on the pillion seat thereof approached nearer. The deceased scooter driver instead of going round the traffic island which was incumbent on him for going towards his right made a sudden short cut and swerved towards the right to climb on to the Rego over-bridge. In attempting to do so he crashed head-on into the on-coming car No. PNJ 200 driven by Sehdev Seth appellant and the force of the impact violently threw both the riders on the scooter on the road the driver of the car stopped the vehicle dead within two to three yards of the impact. However, Harbans Singh deceased received grievous injuries and even though he was removed forthwith to the V. J. Hospital, he succumbed to them during the night. Smt. Manjit Kaur claimant received relatively minor injuries and survived. The accident apart from others was witnessed by Constables A. W. 6 Inder Singh and A.W. 7 Shingara Singh.
3. Smt. Manjit Kaur claimant along with her five children preferred a petitioner before the tribunal claiming damages to the tune of Rs. 4,40.000/-. The learned Tribunal held on issue No. 1 that the driver of the car was driving it at a relatively high speed and had been negligent in not being held to avoid a collision with the scooter. He assessed the damages for the death of Harbans Singh at a lump sum of Rs. 43,530/- and also granted Rs. 3600/- in respect of the injuries sustained by Smt. Manjit Kaur. On appeal being preferred by the claimants as also by the insurer and the car owner, the learned Single Judge was certainly guilty of negligence but opined that his contribution towards this accident should be fixed at 20 per cent whilst that of Sehdev Seth appellant at 80 per cent, apparently because he was according to the learned single Judge, responsible for the accident to a larger extent. After apportioning the negligence the learned Single judge adverted to the issue of damages and enhanced the amount of compensation for the death of Harbans Singh to Rs. 1,50,000/- whilst maintaining the compensation of Rupees 3600/- given to Smt. Manjit Kaur claimed for her injuries.
4. In this appeal the matter is now in a narrow compass in view of the findings of the fact arrived at by the learned singly Judge himself. These have indeed been not seriously assailed even on behalf of the claimants With regard to the patent negligence, on the part of Harbans Singh deceased in driving the scooter he first observed as follows:--
'In the appeal, I have gone through the evidence with help of the learned counsel, so far as the omission of Harbans Singh, deceased, to make a turn round the traffic island is concerned, evidence of Inder Singh, A. W. 6,is quite clear. He has categorically stated that the deceased did not reach the traffic island before he made a turn towards the Rego Bridge. It is now to be seen whether in these circumstance the appellant still should beheld responsible for negligent driving or not. ...'
Adverting then to rule 9 contained in the Tenth Schedule of the Motor Vehicles Act the learned single language Harbans Singh deceased was also negligent to some extent. However, in apportioning the negligence the brief rationale thereof is only as follows:--
'The learned counsel for the respondents had drawn my attention to the photograph of the site after the accident took place. It shows that the front portion of the car driven by the appellant was also damaged. From this fact it can safely be inferred that the deceased had gone fairly ahead towards, Rego Bridge when the appellant's car, apparently being driven at a fast speed, struck against it. I am, therefore, of the view that negligent driving of the appellant was to a large extent responsible for this unfortunate accident. In these circumstances, I hold that the contribution of the deceased in terms of negligence toward this accident should be fixed at 20%. '
5. In the aforesaid context the very first and indeed the primary question herein is whether in face of the virtually admitted factual position and the glaring infraction of the statutory traffic rules by Harbans Singh deceased himself he was not primarily and solely responsible for the accident due to his own rash and negligent driving. The answer to my mind appears to be plain that he indeed was so.
6. Since the learned single Judge has laid the larger and the heavier burden of contributory negligence on Sehdev Seth appellant, it is expedient to advert to this aspect first. Now it is not in dispute that the time of the accident was as late as 10.30 P. M. Admittedly at that time the wide G. T. road at the material point was relatively bereft of traffic. Sehdev Seth appellant was proceeding in his car on his left side with all the normal and reasonable care of a good river when he approached the traffic island. It has to be highlighted that this traffic island is located at what is virtually a 'T' junction where the relatively minor road over the Rego bridge joins the main highway. Admittedly again the traffic island is not in the middle of the G.T. road, but on its extreme end where the road over the bridge joins the same. There is no evidence worth the name that either when approaching the traffic island or after passing the same, the car was being rashly or fastly driven. The significant fact in this context is that A. W. 1 Manjit Kaur petitioner, the star witness in the case does not say a word in her examination-in-chief even that the car was being driven fastly or negligently. None of the witnesses adduced on behalf of the claimants have been attempted to assess precisely the speed of the car. A. W. 6 Inder Singh and A.W. 7 Shangara Singh, the two police constables, who have not axe to grind in their evidence clearly state that as Sehdev Seth appellant approached the traffic island, he took the basic care of dipping the head-lights of his car which were on. In his cross-examination R.W. 2. Sehdev Seth appellant stated that he was driving at a speed between 20 to 30 miles per hour. Considering the wide road, the absence of the traffic and the time of the night, this speed cannot even remotely be labelled as 'rash'. It bears repetition that the car was being driven on the main G. T. Road and therefore, there was no duty cast upon its driver to show down his vehicle when approaching a T-junction. It has been so held in Hoshiarpur National Transporters Pvt. Ltd. V. The Motor Accidents Claims Tribunal, Hoshirapur 1979-81 Pun LR 618.
7. That the car was being driven at a normal speed and with due care and caution, is further evident from the fact that despite the head-on collision, the driver was able to stop the vehicle within 2 to 3 yards of the impact. Sehdev Seth appellant in his evidence was categoric on the point and there is no challenge whatsoever to this part of his testimony. That he instantly and heavily braked his vehicle and brought it to halt in the shortest distance, is evident from the relative short, length of the skid marks. Equally it is the case that after the impact both the scooter and its two riders fell in front of the car, yet it is nobody's case that this vehicle either in over-ran or hit the scooter or any one of the two victims of the accident opposite it. That would plainly indicate that the car was being driven under complete control and at no excessive speed. The photographs of the vehicle and its position on the road over the crossing as deposed to by A.W. 5-Shri Satya Parkash would all tend o show this. Indeed, the learned counsel for Smt. Manjit Kaur claimant cold not pin point even a singly factor which could lay the stigma of either negligence or high speed at the door of Sehdev Seth appellant.
8. Equally material in this context is the fact that Sehdev Seth appellant, in this very accident was criminally charged under Section 279 338 and 304A of the Indian Penal code. On virtually the same evidence which has been produced in this case, he was acquitted on January 20, 1989 by the Judicial Magistrate Ist Class, Amritsar on the clear finding that he was not guilty of rash or negligent driving and was, therefore, not liable under any of the charges framed against him. Eve though the said finding is not binding yet its relevance is patent.
9. The only reason given by the learned singly Judge in holding that Sehdev Seth appellant was to a large extent responsible for the accident seems to be that the front portion of the car was damaged and a vacillating finding that the same was apparently being driven at a fast speed. When the deceased struck against it. With respect we find no factual basis for the assumption of any fast or rash driving by Sehdev Seth appellant. It has already been noticed that there is no direct evidence on the point and circumstantial evidence patently negatives any such inference. Again the fact the impact of the accident was on the front portion of the car can raise neither an inference of fast speed nor of negligence. On the admitted fact the deceased was approaching from the opposite side and in a sharp and dangerous swerve to the right he struck the car head on. Damages to the front portion of the car in such a contingency was inevitable and in our view no adverse inference whatsoever against Sehdev Seth appellant can be raised therefrom.
10. To conclude on this aspect of the matter we find that there is no evidence whatsoever to ascribe either rashness or negligence to Sehdev Seth appellant. It is axiomatic that before he can be saddled with liability negligence must be established by the claimants against him. The following observation of Kailasam, J., speaking for the final Court in Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977, ACC CJ 118: (AIR 1977 SC 1248) are instructive:--
'............The concept of owner's liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in public place can not justify fastening libility on the owner. It may be that a person bent upon commiting sucide may jump before a car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the lynch pin to recover compensation.'
'.......... We conclude by stating that the view o the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner or negligence is necessary before the owner of the 'insurance company could be held to be liable for the payment of compensation in a motor accident claim case.'
11. Adverting now to the conduct of Harbans Singh deceased, it is the common case that on the wide open G.T. Road at 10.30 P. M. he was approaching the car from the opposite side on a scooter along with his wife Smt. Manjit Kaur on the pillion seat. The head lights of the car being on, he could not possibly have missed noticing the same. However, in her cross-examination A. W. 1 Smt. Manjit Kaur evasively attempted to say that she did not remember that earlier in the criminal case, she had admitted that her husband and she were talking to each other and were also laughing at the material time. She was confronted with the relevant portion thereof in Court. She here conceded that she had not seen the car before the actual impact with the scooter. Again, it is the admitted position that Harbans Singh deceased wanted to go on to the road over the Rego Bridge and it was, therefore, incumbent upon him to go round the traffic island located on the junction of the two roads. Instead of doing so without warning or signal he swerved to his right and making a hazardous short-cut and abandoning all rules of traffic and precaution attempted to get on to the Rego Bridge. Obviously, it was his duty both to go round the traffic island and in any case when swerving to the right to see that the road was clear. He observed neither of the two. In a totally indefensible violation of rules of the road, Harbans Singh deceased turned right and came directly in the path of the car and struck head-on against the bumper and, the front grill thereof. Inevitably, he was thrown violently off and fatally injured. It is manifest both from the direct evidence on the point as also the photographs that the motor car at the time of the impact had passed the traffic island which Harbans Singh deceased was obliged to go round. It seems to be manifest from the above that Harbans Singh deceased threw every rule of caution and safe driving to the wind in rashly crashing head on to the car proceeding innocuously on the left side of the road. The facts here are thus eloquent, but passing reference may also be made to precedent. In Lew Voon Kong v. Mustaffa Bin Kamis, 1979 ACC CJ 86: (F. C. of Malaysia), a motor cyclist who short circuited to the other side of the road resulting in head-on collision was held entirely responsible therefor. By way of analogy, reference in this connection may also be made to State of Punjab v. Roshnai Ram, 1976 ACC CJ 506(PUNJ) and Satya Wati Devi v. Union of India, 1968 Acc CJ 119(AIR 1967 Delhi 98).
12. Now apart from the above, the learned single Judge rightly found that the deceased Harbans Singh was equally, if not more, guilty of what may be called statutory negligence. Rule 9, contained in the Tenth Schedule of the Motor Vehicles Act is in the following terms:
'9. The driver of a motor vehicle shall:
(a) When turning to the left, drive as close as may be to the left hand side of the road from which he is making the turn and of the road which he is entering;
(b) When turning to the right, draw as near as may be to the center of the road along which he is travelling and cause the vehicle to move in such a manner, that.....
(i) as far as may be practicable it passes beyond, and so as to leave on the driver's right hand, a point formed by the intersection of the centre lines of the intersecting roads; and
(ii) it arrives as near as may be at the let hand side of the road which the driver is entering.'
The application of the aforesaid rule, which prescribes the basic precaution for turning towards the right has further to be viewed in the context of the fact that admittedly there was a traffic island at the out junction which the deceased was obliged to go round for turning to the right. In doing what he did, Harbans Singh plainly infracted the aforesaid rule and more blatantly so in the peculiar situation which has been adverted to earlier, it must therefore, be held that the deceased was equally guilty of the flagrant violation of Rule 9. To sum up on this aspect, it appears to be plain that Harbans Singh deceased was guilty both of rank negligence by violating the prescribed rules of the road and the accident was the direct result of his foolish and not merely careless or negligent driving of his scooter by him. We are unable to agree with the learned single Judge that the contribution of the deceased in terms of negligence was merely 20 per cent and in fact it appears to us that the same was indeed 100 per cent.
13. In view of the aforesaid finding the six appeals preferred by the Oriental Fire And General Insurance Company Ltd., as also the owner of the insured vehicle are hereby allowed and the compensation awarded against them is set aside. As a necessary consequence the appeal and the cross-objections preferred by the claimants are without merit and are hereby dismissed. The parties will bear their own costs.
J. V. Gupta, J.
14. I agree.
15. Appeal allowed, cross objections dismissed.